Another lawsuit targets Triad

Alabama woman dies shortly before scheduled deposition

After a seemingly routine recall of alcohol pads in January 2011, the Journal Sentinel found federal regulators had known about problems at Triad Group and its sister company, H&P Industries for a decade but failed to take action.

An Alabama woman who claimed she was severely sickened by an infection caused by Triad Group alcohol pads has died only days before she was scheduled to give a deposition in her lawsuit against the Hartland-based company.

In the lawsuit, Ruby Hutcheson said she had acquired a Bacillus cereus infection while using alcohol pads that were part of her medical treatments for osteoporosis. The 68-year-old woman from East Brewton, Ala., developed large and painful lesions in her abdomen as a result of the infection, according to her complaint filed in late July.

Treatment of the lesions required multiple surgeries, according to the lawsuit filed in Escambia County, Ala., Circuit Court.

On Saturday, Hutcheson died at home. An autopsy has been performed to determine whether her death stemmed from her illness and the infection, her attorneys said.

Results of the autopsy were not available Tuesday. But the lawsuit against Triad, CVS Pharmacy Inc., and drug manufacturer Eli Lilly & Co. will proceed, her attorneys said.

Triad, one of the nation's largest makers of antiseptic wipes and other pharmaceutical products, has strongly denied any connection between its products and illnesses or deaths. Since April, the company has been shut down following product recalls, including one linked to Bacillus cereus, a deadly bacterium blamed in a lawsuit for the death of 2 -year-old Harry Kothari of Houston.

Triad plans to restart operations under an FDA consent decree that will closely monitor manufacturing and product quality control.

The FDA's Office of Surveillance is looking into reports of a total of eight deaths, not including Hutcheson, that may be connected to the company's alcohol wipes. Only two - the Houston boy and a 66-year-old man - cited the bacterium directly, an agency document shows. Some 200-plus other reports have been received by the FDA that cite other problems, ranging from rashes to severe illnesses.

The FDA, tasked with protecting public health, says the product recalls have been effective but refuses to release audit reports detailing findings and measures taken by Triad and its manufacturing arm, H&P Industries.

Hutcheson was scheduled to give an emergency deposition in her lawsuit Wednesday, since doctors didn't expect her to live more than another two weeks. She died at home before the videotaped deposition could be taken.

"We are sorry to hear that she passed away and pass on condolences to her family. We have no evidence at this stage that the alcohol pads had anything to do with her passing on," Triad spokeswoman Christy Maginn said in an email to the Journal Sentinel.

According to the lawsuit, use of Bacillus cereus-contaminated alcohol pads that came with the injectable drug Forteo resulted in Hutcheson suffering from "egregious sores and lesions on and in her abdomen, causing excruciating pain and anguish and requiring multiple surgeries, hospitalization and continuous nursing care."

Triad has objected to an attempt by the Kotharis to move the lawsuit from Texas to Wisconsin.

Maginn said she believes the Kotharis' attorneys are using Journal Sentinel coverage of the case to "seed a jury" in Wisconsin, adding that is her opinion and not an official statement from the company.

Moving the case to Wisconsin would lessen the legal costs for Triad and H&P, preserving more of the $5 million liability insurance policy, according to Don Kidd, one of the Kotharis' attorneys in Houston.

"It is interesting that Triad does not want to face a jury in its home jurisdiction. Also, Triad has refused to disclose whether it has any assets beyond the insurance policy," Kidd said in an email.

"The disdain that H&P and Triad, each Wisconsin companies, display for the judges and jurors in their own home state is astounding," Kidd's firm said in a court filing. "Do they really expect this court (in Texas) to hold that a Wisconsin court cannot deal with potential 'jury taint' from either side, and not hold a fair trial?"

It's unclear whether the Kotharis' attorneys are seeking to move the case to a Wisconsin state court or federal court here, according to defendant Steris Inc., which was involved in the irradiation of Triad products. And it's unclear whether a new court would apply Wisconsin law or Texas law to the case.

Wisconsin overhauled its entire "products liability landscape" earlier this year, making it impossible for Steris to know how a court here would apply the new legislation, the company said in a recent court filing.

Steris may face "great prejudice if it is forced to litigate this matter under the new Wisconsin laws that have not been interpreted or applied by the courts," the company said.

About Rick Barrett

Rick Barrett covers manufacturing, telecom and agriculture. He has received Best in Business awards from the Society of American Business Editors and Writers and was co-recipient of a Barlett & Steele award for investigative business journalism.